Law & Order in America:
"Remarkable Progress" or the Calm Before the Storm

A System's Fatal
Flaw

by Jim Bond '64

I've always insisted that we can have as little or as
much crime as we want, depending on what we make a crime; and in my judgment
we make far too much conduct criminal. The criminal law is too blunt and
too costly an instrument by which to deter all but the most dangerous
antisocial behavior.

The criminal justice system works very differently in practice than it
is supposed to work in theory, and that is both its fatal flaw and its
saving grace. In theory we have a system that is supposed to operate on
the assumption that the defendant is innocent until proven guilty; andonce
again, in theorythe system is supposed to have so many procedural
checks that only the guilty will be convicted. Neither supposition is
true in practice. Most of the "players" in the system (including
defense counsel) operate on the assumption that the defendant is guilty,
and some of you have pointed out cases in your own experience where the
innocent have been convicted and the guilty have gone free.

The latter reality is an unfortunate if not fatal flaw. The system nevertheless
works reasonably well because in practice the "players" are
generally competent and honest. Indeed, what impressed me most while moderating
this Wabash Magazine online forum was the insight and concern of
the participants about how they should do their jobs. I think that the
citizenry would have a lot more confidence in the effectiveness of the
criminal justice system if they knew that persons like these Wabash men
were in charge of making it work